Wednesday, October 24, 2012

Drafting a Constitution: Part I of II

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Constitutions,
like revolutions, have an aura.We
like to think they are written in a refined atmosphere of principle.Nothing of the mundane and shabby
pursuit of power attends them.Frequently
as the years roll away from the moment they are drafted it is not only possible
but indeed necessary to view them in such a light.Unfortunately
real constitutions, especially those that work, must command sufficient assent
to function and that requires unpleasant political compromise about the messy
details of power at a given time and place along with principles that will last
for an age if not necessarily for all time.Americans have a tendency to forget that the same
constitution that forbade Congress to limit freedom of expression also required
states and individuals to deliver fugitive slaves to their masters.It took a civil war to make a
constitution we can more comfortably read today in place of the one that was
originally written.

So,
too, the draft of the Egyptian constitution is the product of a committee
representing many points of view.As
with any document produced by a committee, the new document is not fully
coherent.No part of it is quite
as bad as that third clause of the second section of the fourth article of the
US constitution. But then
nobody is actually living in the 18th century anymore.This is not a document likely to cause
a civil war but it may prove not to be more successful than most
constitutions.Constitution
writing, after all, is hard to do:over a couple of centuries Bolivia has had 17; France has had 16.

Because
the Egyptian constitution is a long and complex document whose many articles
will have significant repercussions on public life I have found it impossible
to write one entry.What I plan
therefore is to write several entries.This, the first, will address some of the problems attendant on how the
draft has chosen to address the issue, obviously dear to many of the drafters,
of making Islamic law and values more centrally located in the Egyptian
government.My concern here is not
with how Islam and government might be connected in the abstract
but with some of the particular ways, institutional and legal, that the writers
of the current draft have chosen to address them and what their implications
could be.

The
draft constitution is based on a communitarian view of politics in which national
decision-making is vested primarily in the executive. I will write in another entry about the
presidential system the draft envisages. The main role of the state is to
protect a particular understanding of society as a moral community that the president
and the legislature have very broad latitude to define.While the most basic underpinning of
this vision in the constitution is of a moral community founded in Islam, the
document itself (like the Sadat constitution but unlike that of 1923 constitution)
occasionally espouses narrower and occasionally broader views of the
community.In addition to the
three branches of government the draft also foresees the creation of several
other autonomous bodies whose relationship to governance is only vaguely
defined and whose legal implications for the state could become extraordinarily
complex.

The
relationship of the Egyptian state and the Egyptian people to Islam is spread
across many different articles.The
most controversial of these is Article 68 mandating the Egyptian state to establish
women’s equality with men insofar as this does not conflict with the rulings of
Islamic law.Although it is clear
that this article would profoundly affect divorce and inheritance rights of
Muslim women, its full impact will be clearer after a discussion of the other
articles.

Article 1 of the constitution
defines the Egyptian people as part of both the Arab and the Islamic communities
(ummas).This is one of many sections of the
constitution that define a relationship between the Egyptian people as a whole,
not all of whom are Muslim, Islamic community and the foundational discourse of
that community.No previous
Egyptian constitution has gone to such lengths to enunciate such a definition
and it may prove to be a cause for regret for many people, including the
Islamist political figures engaged in drafting this document. Constitutions create rights and
they also create discursive frameworks.The 1971 constitution defined the Egyptian people as part of the Arab
people but indicated they did not form a single political body.This language is considerably more
ambiguous.It confers neither
citizenship nor the right to a political role on non-Egyptians but it also
clearly does, as later articles suggest, open a formal role for non-citizens
that many Egyptians would find troubling.At some point it will also raise the question of what role non-Muslims
could play in the interpretation of Islamic shariah.

To the degree that a community is
defined by its commitment to a legal discourse (that is, that an umma is defined by its shariah) the first article creates
ambiguity about the relationship of the Egyptian state to the various communities
it might represent.This obviously
creates a problem for Christians who are certainly Egyptians under the
constitution but who would not be considered part of the Islamic umma.The drafters may, like some
intellectuals in the Islamic current, see Egyptian Christians sharing a culture
saturated with Islam but this is not the language of the article itself.The problem, as I have noted previously, is that to make
Islamic law foundational for Egyptian law and to make all Egyptians equal in
rights and responsibilities (as this document does) is to pose the question of
whether all Egyptians are equally capable of invoking or deploying the language
of Islamic shariah in arguments about law and policy.In many ways, this constitution poses the question more
sharply than ever before in recent history and also attempts to foreclose who
can engage in its resolution.

Article 3 provides that the principles
of Jewish, Christian and Islamic shariahs will govern the personal status laws,
religious affairs and leadership choices of those communities
respectively.Since there is no
longer a Jewish community in Egypt, this really refers only to Christians and
Muslims both of whom will be governed by principles drawn from their own
religion in personal areas of life but who will also be governed by Islamic
foundational principles elsewhere.This, of course, is what poses so sharply the question of who can discuss
what the foundational principles are and how they are to be interpreted.

Article 2 makes Islam the religion
of the state and the principles of Islamic shariah the basis of Egypt’s laws. This disputed article reproduces
the language of the 1971 constitution as amended in 1980.Article 2 does not stand alone,
however.It must read in
conjunction with Article 4 that makes the Azhar (Egypt’s pre-eminent Islamic
religious center) an independent Islamic institution with an undetermined
mission in regard to the global Islamic community for which the state provides
material and financial support.The manner of choosing the Shaykh al-Azhar will be determined by law but
once chosen he cannot be removed.In any matter regarding Islamic shariah the opinion of the Council of
Higher Ulama (as a body rather than through the medium of the Shaykh al-Azhar)
must be taken into account but is not determinative.Taken together these two articles move the Azhar and its
most prominent scholars (ulama) more directly into a constitutional and
political role than has been the case for decades if not centuries.

There is no constitutional
provision, incidentally, that the Shaykh or members of the Higher Council be
Egyptian so it is possible to imagine a day when someone who is not a citizen,
but is a member of the community that includes Egyptians, can voice an
authoritative opinion on Egyptian law.The Muslim Brothers and the leaders of the various Salafi movements have
demanded increased independence and autonomy for the Azhar.In many ways this article is a response
to that demand but it remains to be seen how independent of the state the Azhar
will become.Ayatollah Ali
al-Sistani, the most prominent Shi’i authority in Iraq, was born in Iran; Mahmoud
Shahroudi, the head of Iran’s judiciary, was born in Iraq.

Recent decisions by the Supreme
Constitutional Court limited the scope of specific rulings from within the
corpus of Islamic jurisprudence.The
language of this constitution appears to be designed to expand that scope.The general phrase “principles of
Islamic law” provided earlier governments with significant latitude. The
meaning of the phrase “principles of Islamic shariah” is more fully developed
in the concluding sections of the constitution, in Article 221.The rather vague language from the
earlier constitution is there given a fuller definition: it includes
demonstrations, decisions and legal rules (often referred to as fiqh) of the
four Sunni schools of law.

The expansion of the field from
which principles can be obtained coupled with the restriction of the domain of
what is to be considered Islamic in Egypt (which now excludes elements that
could be characterized as Shi’i) will enhance the role of the Azhar and its
religious officials.Again,
substantively it is hard to know in advance if this will make for worse
policies but it will certainly make for a more complicated legal system, a more
problematic process of writing laws, and ultimately to the increased
politicization and bureaucratization of the religious hierarchy which will now
have many more points of contact with the political and administrative systems.Again, it is hard to know whether the
drafters believed themselves to be writing anodyne texts, but this language
reinforces a still small but nevertheless increasing paranoia in some circles
of Egyptian society about Shi’i Islam.If the government of the country is to be run in accord with Islamic
principles those principles are themselves increasingly narrowly defined in the
constitution.

Egypt
is repeatedly defined as a democratic country which itself is described by shura,
multi-party competition and the peaceful alternation of power.Shura, generally taken to mean
consultation, appears three times in the Qur’an.It has come to be a term used in Islamist discourse as an
equivalent to democracy but its general use as a constitutional term is
undefined.

If
Egypt is to be part of the community of Muslims the constitution also asserts
that besides Islam there are distinctly Egyptian values.The constitution thus describes the
country as a moral community to which the state and society have a
constitutional obligation: defense of its basic (but largely undefined) values(Article 10).These include the defense of the unity of Egypt as a
culture, civilization and language area and of its core or basic values in
regard to the family, which the constitution defines as the basic element of
society (Article 9).The schools
acquire in this constitution an obligation to teach religion and morals as well
as to employ Arabic.While no one
can seriously argue that schools should be devoid of ethics or that the use of
national language is not a good idea, it seems useful to wonder if the constitutional
mandate in Article 52, to teach religion in the schools and ethics in the
universities, is required.It also
seems useful to wonder what will happen to schools which, by teaching in
languages other than Arabic, might be deemed to violate the constitutional
rights of the students.As in
other parts of the constitution, it is not so much that those who have drafted
this language necessarily desire such an outcome but the unexpected ways in
which constitutional texts are litigated.

The
constitution guarantees freedom of belief but it only guarantees the right to
construct houses of worship to Jews, Christians and Muslims (the so-called
Heavenly Religions, Article 37).Although Article 39 guarantees Egyptians the right to express their
thoughts and ideas, Article 38 explicitly forbids expression that is injurious
to prophets or messengers of God generally.This is the first time that an Egyptian constitution has
itself forbidden expression (until now only statutory law has done so).Even those who believe that
Egyptians ought to place more stringent limits on freedom of expression than
does American law might want to consider the danger of having such limitations
placed in the constitution.

One
extremely contentious issue has been Article 68 which requires the state to
advocate for women’s equality as long as it does not contravene explicit
judgments of Islam.This language
is more far-reaching than in the 1971 constitution. Women’s rights advocates
have correctly noted that the word judgments (ahkam in Arabic) is more far-reaching and more restrictive than
“principles” mentioned in Article 2.Article 2, coupled with Article 221 certainly provides a very wide range
of objections to equality.The
point here is not whether Islam inherently treats women equally.It is that this language provides more points
to dispute future statutory language that would further women’s rights in a
decidedly unequal society.Given
the role proposed for the Azhar it is also not clear to what extent “Islamic
judgments” refer to the vast range of past statements and to what extent they
would be prospective.

That
the language of the constitutional article is designed to limit women’s
equality is fairly clear (regardless of what one thinks of the relevant rulings,
principles, or arguments). Deploying
the language of Islam here provides a way, otherwise unavailable within the
constitution, to limit a commitment to the equality of citizens. There are other limits on the
equal treatment of citizens but they are constructed in very different ways.

What is also clear is that the use
of the language of Islam and its principles has so far impeded but not fully
prevented women from gaining rights in Egypt. The mobilization and political activities of activists (primarily but not entirely women) has affected Egypt, Egyptian law, and the Azhari elite.This is a
slender reed but it is notable that, for example, twenty years ago the then Shaykh
al-Azhar believed that Islamic law necessitated female circumcision (or genital
mutilation).In the last decade
more recent occupants of that position have come to state that such procedures
are not required and that outlawing them is acceptable.

The
drafters are clearly undertaking to bring the Azhar and the Islamic religious
establishment (but not the Christian establishment) more generally into the
process of law-making and adjudication.Whether this will prove to be a very good thing for the Azhar itself and
the religious establishment as well as for Egypt and its moral fiber is a
completely different question.

It
is unclear what will happen to the Azhar as its Shaykh and higher ulama are
drawn into everyday legislative decisions.Clearly no decisions about family law or the status of women
can be made without eliciting an explicit opinion from the Azhar.Opinions on women’s issues or others as
well (which may or may not be formal fatwas) will no longer have the quality of
individual judgment but will become institutional statements in larger
political and administrative conflicts.Those who have found the Azhar politicized in the recent past will soon
discover that it becomes even more so.If the Shaykh of the Azhar is indeed to be elected by the higher ulama
from within their own ranks then it will probably return to the highly
politicized environment that dominated in the 1930s and 1940s when the King,
the conservative parties, and the Wafd all attempted to control the position.The bitter battles between Shaykhs
Maraghi, Zawahiri, and Abd al-Raziq for control of the Azhar left deep scars on
the institution and on the politics of the country.

Other
sections of the constitution are likely to impact the state in regard to
Islamic law and history.Article
18 requires the state to protect not only private and communal property but also
“waqf.”Article 24 requires the
state to revive the institution of “waqf khairi” and to encourage it and
mandates the promulgation of statutory language for this purpose.Article 214 creates a “Supreme Waqf
Institution” to oversee the organization of private and public waqfs.

Waqf
refers to a kind of trust or endowment of property in Islamic law.Egyptian jurists in the 1930s and
1940s, notably Abderrazzak Sanhouri (the author of the civil code of 1948) had
long sought to extinguish the institution.In 1952 the Free Officers’ government abolished private
waqfs and nationalized public ones.Reviving waqf may seem like a move to enhance the role of charitable
giving or it may appear to the constitution’s authors to be a step in the
direction of creating a self-directed Islamic society.Charitable institutions are certainly
good things, but there are questions of whether the constitution is the
appropriate mechanism to institute a particular set of public policies that
will require significant statutory innovation.This is especially so because the writing of the new
statutory language will necessarily require the opinion of the Azhari ulama as
will the staffing of this body.

The
independent institution for safeguarding the Egyptian heritage (turath) would
appear to raise similar issues.Again, the creation of institutions to safeguard Egypt’s long, rich and
deep cultural heritage that includes pre-historic, Pharaonic, Greco-Roman and
many varied Islamic aspects is reasonable.Many already exist and perhaps there is a need for more, but
what is less obvious is why this should be a constitutional mandate.Nor is it clear that the debate and
statutes creating such an institution will do anything other than exacerbate
existing conflicts precisely because they are now constitutionalized.Given the importance placed by earlier
articles on safeguarding Egyptian culture or basic values these initiatives
seem likely to create new resources for contentions over the nature of the
Egyptian state and its relationship to society.

The
draft of the Egyptian constitution makes very real and important changes in the
institutional and political structures of the country.Because most of those writing the new
document are part of the Islamist trend in Egyptian politics they have sought
to make Islam, as they understand it, more central to the governing
institutions of the country.They
have done this by strengthening certain existing institutions, creating new
ones, insisting on some statutory innovations, and further defining previously
less clearly defined constitutional language.This is obviously the work of secular politics.The Muslim Brothers and the Salafis
both believe that they will have significant influence over the choice of the
Shaykh of the Azhar and the members of its ruling council as they also believe
they will have influence over the composition of the new institutions mandated
in the constitution.

What
is open to question is how good an idea it is for Egypt to create new layers of
administration and new resources for a relatively limited portion of the
population in a document that is as profoundly committed to the executive power.There is much to be said for Egyptians
generally and Egyptian Muslims to debate openly about the nature of the ethical
concerns and the principles that should animate legislation and regulation in
their society.No doubt such a
debate would be animated largely by language from within the tradition of
Muslim religious thought. Whether this particular constitutional language
accomplishes that is an open question.To me it seems doubtful.One might think that there would be other forms of discussion as well in
a country which has played such a long role in the history of human society and
in which a large Christian minority continues to live.The draft does not completely foreclose such discussions but it certainly is very far from encouraging them.

1 comment:

"There is no constitutional provision, incidentally, that the Shaykh or members of the Higher Council be Egyptian so it is possible to imagine a day when someone who is not a citizen, but is a member of the community that includes Egyptians, can voice an authoritative opinion on Egyptian law." Why is this important? Can't we consider al-Azhar a supranational institution, not unlike various international commercial tribunals, in which the citizenship status of expert members is of no formal relevance? Obviously al-Azhar is deeply embedded in Egyptian society and deeply tied to the current ruling party, but this is equally true of the relationship between members of commercial tribunals and the business communities they serve. The theatrics around dual citizenship of the Mursi's children, Hazem's parents, spouses of Egyptian diplomats, and so on don't strike me as especially good for democracy. And I don't understand the risks that non-citizens at al-Azhar might entail.